Amendments Put Americans with Disabilities Act Back on Path of Tackling Discrimination
The Americans with Disabilities Act (ADA) was signed into law in 1990 with the stated purposes “to provide a clear and comprehensive national mandate of the elimination of discrimination against individuals with disabilities” and to “provide clear, strong, consistent,enforceable standards addressing discrimination against individuals with disabilities.” Employers were guilty of discrimination by, among other things, failing to make reasonable Accommodations to the known physical or mental limitations of applicants and employees.
However, in the years following the ADA’s enactment, the Supreme Court began to erode the class of individuals who qualified as having a disability under the ADA. Cases such as Sutton v. United Air Lines Inc. and Toyota Motor Manufacturing, Kentucky Inc. v. Williams
4 severely restricted the definition of “disability” to the point that it became increasingly difficult for many individuals to meet the basic prima facie case for a “disability” necessary to bring a claim under the ADA.
A New Direction By Mark C. Travis
Accordingly, discrimination cases focused on the threshold question of whether the claimant could prove a disability within the scope of the Supreme Court’s interpretation and application of the ADA, often resulting in summary disposition before an analysis of reasonable accommodation was ever addressed.
5 From this writer’s practice as an advocate and now a neutral in the field, experience has shown this to be the case.
The ADA Amendments Act (ADAAA or the act) became effective on Jan. 1, 2009, and the Equal Employment Opportunity Commission’s (EEOC) Final Regulations became effective on May 24, 2011. The primary purposes of the ADAAA are to “make it easier” for people with disabilities to obtain protection under the law and to provide a broad scope of protection and expansive coverage to the maximum extent permitted by the act.
6 Notably, the regulations provide that the primary focus should be on whether employers have complied with their obligations and whether discrimination has occurred, and not whether the individual meets the definition of a disability, which should not demand “extensive analysis.”
7 With the focus now turning away from the existence of the disability to the employer’s response, it’s not hard to see why many observers and practitioners on both sides of the issue acknowledge that the act has almost created a new protected class.
While many practitioners in the plaintiff’s employment law bar had been shying away from ADA cases, many see this as a potential sea change for their practice. Perhaps the best indicator of this comes from the federal government’s gatekeeper — the EEOC. In the first full fiscal year since the new law’s effective date ending on Sept. 30, 2010, the EEOC’s statistics indicate that charges for disability discrimination increased by more than 3,700 and exceeded the increase in percentage terms over all other forms of discrimination.
8 The Background
To understand the impetus behind these changes and their practical import, it is necessary to outline briefly the statutory framework and two significant Supreme Court cases that set the stage for this statutory change.
An individual with “disability” has always been defined under the act as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”
9 However, critical terms such as “substantially limits” and “major life activities” were left statutorily undefined, leaving the application of those terms to regulatory guidance from the EEOC and statutory interpretation by the courts.
In 1999, the Supreme Court issued three decisions that addressed the effect of corrective devices and medication on the existence of a disability. In Sutton v.United Air Lines, Inc.,
10 the two Sutton sisters attempted to qualify to become pilots but did not meet the airline’s standards without corrective lenses.
Because their eyesight was 20/20 with corrective lenses, the court ruled they did not have a disability.
11 The Sutton decision was also notable for the fact that it addressed the standards for a claim where the individual alleges to have been “regarded as” having a disability. The court ruled that in order to make such claim, the individual must show that the employer actually believed that the individual had an impairment that was substantially limiting. The court went on to point out that an employer is free to decide that certain physical characteristics or medical conditions that are not impairments are preferable to others, just as it is free to decide that some impairments make individuals less than ideally suited for a job.
In 2002, the Supreme Court decided Toyota Motor Manufacturing, Kentucky, Inc., v. Williams.
12 Ms. Williams had developed carpal tunnel syndrome in the course of her employment and after various failed attempts to accommodate her medical restrictions by transfer to alternative positions, she was terminated from her employment. Although the record established that she indeed had difficulty performing certain repetitive activities at work, she was nevertheless capable of performing personal care tasks and household duties. The Supreme Court held that the determination of whether an impairment rises to the level of a disability is not solely limited to activities in the workplace, but must include an analysis of whether the individual is limited in the performance of daily activities that are central to the person’s daily life.
Additionally, the court construed the phrase “substantially limits” to mean that the condition “prevents or severely restricts” the performance of the activity and that the ADA’s definition of disability must be “interpreted strictly to create a demanding standard for qualifying as disabled.”
13 Without fully listing and analyzing all of the lower court cases that followed these rulings, suffice it to say that an individual claiming relief under the ADA found the task daunting indeed.
The practical effect was that under Toyota, an individual with an impairment, however limiting, was not disabled if they could perform most activities of daily life. Under Sutton, if the individual did not have a limiting impairment but nevertheless felt discriminated against, they were left in the untenable position of having to establish that the employer subjectively believed the condition was substantially limiting.
The ChangesAgainst this backdrop, Congress took a bold step in specifically addressing the Sutton and Toyota decisions in the ADAAA. In its ‘Findings,” Congress noted that both cases had narrowed the scope of protection Congress had originally intended in the original act, which judicial interpretations had been followed by lower courts. Accordingly, Congress set forth in the “Purposes” of the new act that it was intended to reject the holdings of Sutton relative to corrective measures and to expand the scope of those claims arising under the “regarded as” component of the definition of disability.
Congress also stated that its purpose was to reject the standard enunciated in the Toyota decisionand convey the intent of Congress that the focus of the legal inquiry should be on whether the employer complied with its obligations under the act, and that the question of whether an individual is disabled should not require extensive analysis.
14 The following is a summary of the statutory and regulatory changes.
“Major Life Activities” — The statutory definition of “disability” has not changed under the new act, although how that term will be applied in the future has been altered significantly, in both the act and the final regulations. The original act had left the definition of “major life activities” to the EEOC, but the act now provides two major categories of such activities. The first, which contains many of the activities that the EEOC had incorporated in its regulations under the 1990 Act, deals with social or vocational activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
15 The second category of activities focuses on medical factors, or major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
16 Contrary to the holding in Toyota, the regulations go on to specify that the term “major” is not to be interpreted strictly as creating a demanding standard and is not to be determined by reference to whether it is of “central importance to daily life.”
17 "Substantially Limits” — The act itself does not specifically deal with the term “substantially limits,” except with regard to corrective devices, although the regulations address its interpretation at length. As with other terms in the act, the regulations provide this term is to be construed broadly in favor of expansive coverage, and it is not meant to create a demanding standard. The regulations state that an impairment is considered to be a disability if it substantially limits the ability of the individual to perform a major life activity “as compared to most people in the general population,” and an impairment does not have to prevent, or even significantly or severely restrict the individual from performing a major life activity in order to be substantially limiting. The regulations contemplate that this determination will generally be made without reference to scientific, medical, or statistical analysis.
18 Rather, in making this determination, the regulations suggest that it will be useful to consider the condition under which the individual performs a major life activity, the manner in which it is performed, and the duration of time it takes to perform the activity. This would include an analysis of the difficulty the individual encounters in performing the activity; the effort required; the painexperienced; how long the activity can be performed and its effect on the operation of a major bodily function; as well as the negative side effects of medication intended to address the condition.
19 It is also important to note that the regulations state that an impairment that is episodic or in remission is still considered a disability if it would substantially limit a major life activity when active and that the effects of an impairment lasting fewer than six months can nevertheless be substantially limiting.
20 For those individuals who have admirably “overcome” the effects of their impairment, the regulations provide that the focus should be on how the activity is substantially limited, and not on what outcomes the individual can achieve.
21 Many cases under the original act dealt with the issue of whether an individual was substantially limited in the major life activity of “working”.
22 The ADAAA was silent on this issue but in designing the final regulations the EEOC chose not to depart from the original interpretation that the limitation must still restrict the individual from a “class” or “broad range of jobs”. Again, however, the EEOC suggested a different application of this standard as opposed to earlier interpretations.
Specifically, the EEOC indicated that in light of other changes to the law, it would be unusual to need to address the major life activity of working since coverage could be established under some other major life activity. Nevertheless, in those cases where the need arises to demonstrate that an impairment substantially limits the major life activity of working, the individual can do so by showing that the impairment substantially limits his or her ability to perform a class of jobs or broad range of jobs in various classes as compared to most people having comparable training, skills and abilities. Again, the EEOC advised that this standard should be applied in a straightforward manner, not requiring extensive and elaborate assessment.
23 Perhaps most significant with respect to the “substantially limits” terminology is some strong regulatory language regarding the emphasis (or lack thereof) the courts are to place on this standard.
In what appears to constitute almost a relaxation of the burden of proof, the regulations state: “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.”
24 “Regarded as Having a Disability”— Another significant change in the act deals with the “regarded as” definition of disability. Considering the interpretation placed on this term by the Supreme Court in Sutton, few claims were successful in raising this theory as grounds for a discrimination claim. Both the act and the regulations now clearly address this issue. Under the act, an individual meets this requirement if he or she has been subjected to discrimination because of an actual or perceived impairment, regardless of whether or not the impairment limits or is perceived to limit a major life activity.
25 Put another way, the regulations provide that this definition of disability does not require a showing that the impairment substantially limits a major life activity, and indeed, the term “substantially limits” is not relevant under this prong of the disability definition.
26 Consequently, an individual is deemed to satisfy this requirement if he or she has been subjected to a prohibited action because of an actual or perceived impairment, whether or not that impairment substantially limits or is perceived to limit a major life activity. Prohibited actions include such things as refusal to hire, demotion, placement on involuntary leave, termination, or exclusion from a position for failure to meet a qualification standard.
27 The only real limitation on this definition of disability is that it cannot be utilized if the impairment is transitory and minor with an expected duration of six months or less.
28 It is important to note that if the employer wishes to defend a “regarded as” claim based on the fact that the individual’s condition is transitory and minor, it is not sufficient for the employer to establish that it subjectively believed the impairment was transitory and minor; rather, it must objectively demonstrate that the impairment is both transitory and minor.
29 Corrective Measures —Finally, in response to holdings in Sutton and related cases dealing with corrective devices and measures, the act plainly provided that the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures. Examples of mitigating measures include medication, equipment, low vision devices (other than ordinary eyeglasses and contact lenses), prosthetics, hearing aids and cochlear implants, mobility devices, oxygen therapy equipment, assistive technology, auxiliary aids, as well as learned behavioral or adaptive neurological modifications and psychotherapy.
30 Conversely, the corrective effect of ordinary eyeglasses or contact lenses is to be considered in determining whether an impairment limits a major life activity. “Ordinary eyeglasses or contact lenses” means that the lenses are intended to “fully correct” visual acuity or eliminate refractive error.
31 In another apparent reference to the Sutton decision, the regulations provide that an employer cannot use a qualification standard or test based on an individual’s uncorrected vision unless the standard or test is job related and consistent with business necessity.
32 The Immediate ImpactAs the new act does not have retroactive effect,
33 there have not been many reported decisions interpreting these new provisions. However, a review of those few cases arising after the law’seffective date do evidence a shift in judicial thinking, at least at the federal district court level. For instance, prior to the enactment of the ADAAA, the trend of strictly interpreting what constitutes a disability created results such as cancer not supporting an actionable claim.
34 That trend is already changing. In Hoffman v. Carefirst of Fort Wayne, Inc.,
35 the United States District Court for the Northern District of Indiana unequivocally determined that Hoffman’s renal cell carcinoma met the definition of disability under the ADAAA. Hoffman had been cancer-free for over a year and had been working without any medical restrictions or limitations, and had no performance issues.
However, the employer altered Hoffman’s working arrangement to require him to travel an additional three hours each day to a new work site, whereas he had previously worked from his home. Hoffman obtained a restriction from his physician that limited him to 40 hours per week, which ultimately resulted in his separation from employment.
In its motion for summary judgment, the employer argued that Hoffman did not have a physicalimpairment that substantially limited a major life activity. In denying the motion, the court stated that although Hoffman’s cancer was in remission, it would have substantially limited a major life activity while active and Hoffman did not need to show that he was substantially limited in a major life activity at the time of the adverse employment decision.
Cases decided prior to the enactment of the ADAAA similarly found that an individual’s HIV-positive status did not amount to a disability under the law. Under the new act, a recent case out of the United States District Court for Northern District of Illinois reached an opposite conclusion. In Horgan v.Simmons,36 the plaintiff was terminated the day after he disclosed his HIV-positive status to his supervisor. The supervisor had asked Horgan how he could perform his job and continue to work with a terminal illness. Horgan had been HIV-positive for more than 10 years but had never encountered any performance issues during his eight years of employment with the defendant. In denying the employer’s motion to dismiss, the court determined that it was certainly plausible under the ADAAA that Horgan’s HIV positive status substantially limited a major life activity, that being the function of his immune system. In an interesting footnote in this case, the court observed that even though Horgan did not allege disability discrimination under the “regarded as” prong, the facts of his termination plausibly suggested that he was terminated because the employer regarded his condition as an impairment. The issue of being “regarded as” having a disability also arose in the recent case of Chamberlain v. Valley Health System, Inc.
37 In this case, Chamberlain began having difficulty with her vision in the performance of her duties as a pharmacy technician. Her ophthalmologist provided her with a statement that she had a visual field defect that made fine visual tasks more difficult, which he opined could have been medication related.
Based on this report, Chamberlain was required (against her wishes) to be placed on disability leave and was instructed to provide the employer with a medical certificate authorizing the leave.
The condition resolved within a few weeks and Chamberlain made several attempts to return to work, which were denied by the employer because they had never received the medical paperwork either from Chamberlain or her physician. As a result, Chamberlain was terminated from her employment. In moving for summary judgment, the employer contended that Chamberlain was never “regarded as” disabled because the employer believed her vision problem was transitory and minor. However, based on the employer’s action in requiring Chamberlain to go on disability leave, the court held that the issue of whether the condition was transitory and minor must be decided by a jury.
Where Do We Go from Here?
At the risk of overstatement or oversimplification, it appears that the ADAAA has, for all practical purposes, cleared the “disability” hurdle that was so often found lacking in cases under the original act. Now that this element will be more easily satisfied, the focus will turn to the act of discrimination itself, which will most often arise in the context of the employer not having made reasonable accommodation for a qualified individual with a disability. Put another way, by broadening the definition of disability in so many ways, Congress has effectively shifted the scope of future ADA claims toward the “qualified individual” inquiry, and specifically toward the “reasonable accommodation” element.
The ADAAA did not significantly modify the definition of “qualified individual,” which is defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
38 The act provides that the employer’s judgment as to what functions are essential, if stated in a written job description, may be considered as evidence of which functions are essential.
39 However, the regulations provide additional guidance as to what constitutes an essential job function, including whether the position exists to perform the function, the number of employeesamong whom the function can be distributed, whether the function is highly specialized or the employee was hired to perform that function, the consequences of not performing the function, the amount of time spent performing the function, and the terms of any collective bargaining greement.
40 Reasonable accommodation, in turn, is defined as:(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers and interpreters, and other similar accommodations for individuals with disabilities.
41 The duty to reasonably accommodate an individual’s disability also encompasses the duty of both the employer and employee to engage in an interactive process to determine the appropriatereasonable accommodation for an individual with a disability. Specifically, the obligation requires the employer to initiate an informal, interactive process with the qualified individual in need of accommodation, in order to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”
42 The requirement is mandatory in order to satisfy the reasonable accommodation standard.
43 While these definitions provide some guidance, they remain largely untested as the courts have rarely reached these issues. Unresolved issues remain over topics such as what type of accommodation is “reasonable” and what is “unreasonable”; whether an employer isprohibited from preferring one individual with a disability over another; and what type of balancing tests should be used to determine “reasonableness.”
44 While none of these statutory or regulatory provisions cited immediately above are new to the framework of the ADA, it may have been some time since the employment law practitioner has found it necessary to analyze them at great length.
Their purpose here is to point out the kind of factually intensive analysis that will now come into play in the negotiation and litigation of these cases. It can be expected that once the element of “disability” is satisfied, there will be contention over what job functions are essential, whether an accommodation is indeed reasonable, and the depth to which the parties are engaged in theinteractive process, if at all. With respect to the essential job function question, this may also involve comprehensive job analysis by expert witnesses. All of this is to say that given the factually intensive nature of what will likely be construed as material facts, summary disposition may be less likely, at least until more cases are decided that clarify the standards by which these determinations are made.
There remains one final area that this writer believes may bring about a dramatic increase in the number of claims brought under the ADAAA. Under the Sutton decision, claims for relief under the “regarded as” theory became increasingly rare. However, this component of the definition of disability has been greatly expanded to the extent that whether the individual’s impairment substantially limits a major life activity is no longer relevant. Consequently, in those caseswhere the employee has suffered an adverse job action not relating to a request for an accommodation, yet claims the action is because of a perceived disability, analysis of the case will fall within a traditional McDonnell Douglas framework. In the Sixth Circuit, that requires the plaintiff to make a prima facie showing that: (1) he or she is disabled; (2) he or she otherwise qualified for the position, with or without reasonable accommodation; (3) he or she suffered an adverse employment decision; (4) the employer knew or had reason to know of the plaintiff’s disability; and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced.
The defendant must then offer a legitimate explanation for its action. If the defendant satisfies this burden of production, the plaintiff must introduce evidence that the proffered explanation is retextual.
45 The point here is this: an increasing number of cases are sure to be brought under the“regarded as” definition, which will result in a McDonnell Douglas analysis, under which the employee will now have little difficulty in establishing a prima facie case.
Accordingly, the fact-intensive evaluation of the employer’s legitimate business reason and pretext is likely to reduce the probability of summary judgment.
A Final Note…From a practical standpoint as a neutral, I suspect that in light of these new standards and the increased filings for disability discrimination with the EEOC, it will not be surprising if these claims do not receive additional administrative scrutiny as the law develops.
Additionally, while many employers will be sensitive to their new obligations under the act, erroneous interpretations and misguided employment decisions are sure to arise as the new law is applied in everyday employment decisions.
When a charge is filed, prudent counsel should closely evaluate the issues of “essential functions” and “reasonable accommodation” at an early stage and seek to re-engage in an interactive process to determine the propriety of the employment action that gave rise to the charge and negotiate a resolution, if possible, without protracted litigation.
MARK C. TRAVIS is a member of the Tennessee Bar Association’s Labor & Employment Law, and Dispute Resolution sections, and holds an LL.M. in Dispute Resolution from Pepperdine University School of Law. He serves as the director of the Tennessee Labor-Management Center and is a contract mediator for the Equal Employment Opportunity Commission and the American Arbitration Association. He can be reached at firstname.lastname@example.org.